"There never should have been so much as an investigation—much less an assassination by political prosecution of General Flynn—a distinguished patriot of thirty-three years of exemplary service in total devotion to this country." That is the closing sentence to General Michael Flynn's submission to the court hearing his challenge against his trial judge. That judge – Emmet Sullivan – refuses to dismiss the case against Flynn for lying to FBI agents. Government prosecutors have said his sentencing would not serve the interests of justice; as is well-documented, the FBI concocted an investigation and charges without legal justification. Flynn was a political target. The brief Flynn's lawyer, Sidney Powell, submitted, provides an easy-to-read roadmap as to how and why; it pulls no punches against Sullivan or the FBI.
Maverick Jurist
Judge Sullivan started this part of the process when he decided not to dismiss the case against General Flynn, as he was petitioned to do by prosecutors. Before he would, he issued an order inviting the public to submit amicus briefs in the case. These "friend of the court" briefs are legal essays that propose to a court what the author thinks are the key issues surrounding a legal challenge and how a court should rule on them. They are seen in appellate cases – especially those heard by the Supreme Court – but are unheard of in criminal court cases at the district court level. If that weren’t bad enough, Judge Sullivan didn't simply allow interested parties to submit briefs; he hired someone to write a brief in opposition to Flynn, the defendant.
Ms. Powell notes that John Gleeson, the retired judge who Bill Clinton appointed to the bench, advertised his bias in the Flynn case with an op-ed for The Washington Post. Gleeson's piece was titled "The Flynn case isn't over until the judge says it's over." In it, he says, "If prosecutors attempt to dismiss a well-founded prosecution for impermissible or corrupt reasons, the people would be ill-served if a court blindly approved their dismissal request." Powell blasts Gleeson for engaging in a "flagrant personal and partisan assault on General Flynn, Attorney General Barr, and the President of the United States."
General Flynn's brief asserts that the Justice Department is only now – finally – exposing the truth behind Flynn's investigation and prosecution. Powell calls the irony and duplicity "stunning." She calls Judge Sullivan's actions a clear violation of the separation of powers, as only the executive is allowed to decide who is prosecuted for a crime:
"[T]he power to prosecute—to decide who, when, where, and how someone is charged with a federal crime or when the case must be dismissed—rests entirely with the Department of Justice.
Different Rules For Trump v. Obama?
Curiously enough, another high-profile defendant had his charges dismissed by Judge Sullivan. In the case against Ted Stevens, the former Republican senator from Alaska, prosecutors illegally and unethically withheld exculpatory information from the defense – as happened with the Flynn case.
Judge Sullivan thought the government's 100-plus-page submission to dismiss Flynn's charges was not enough information to act on, even though it "includes 86 pages of new documentation that completely destroys the premise for any criminal charges." In the Stevens case, however, a mere two-page memo from then-Attorney General Eric Holder was enough to convince him.
What About Perjury?
Judge Sullivan seems to have had it in for General Flynn from the beginning of the process. Recall he said Flynn "sold your country out," suggested he should be prosecuted for treason – a capital crime – and suggested "contempt for perjury." This latter claim comes because Flynn pleaded guilty to the charges that he now repudiates. The defense eviscerates this argument, calling it "spurious" and asking of all those who have been exonerated by DNA after pleading guilty: "Are they now to be punished in some way for perjury?"
The brief includes allegations that General Flynn's legal team still does not have all the exculpatory evidence in the case. It says of Judge Sullivan's actions, "all it has accomplished is degradation of the court itself, needless and counterproductive delay, waste of scarce government resources, and dramatic increase of costs to the defendant.”
Perhaps the best example from the brief comes from the conclusion, where Ms. Powell quotes from Judge Gleeson – yes, the man who wrote the amicus brief for Judge Sullivan. When Gleeson was a judge, he praised then-U.S. Attorney Loretta Lynch for moving to vacate charges against a defendant who had received an extreme sentence. In 2014, Judge Gleeson said:
"This is a significant case, and not just for [the defendant]. It demonstrates the difference between a Department of Prosecutions and a Department of Justice. It shows how the Department of Justice, as the government's representative in every federal criminal case, has the power to walk into courtrooms and ask judges to remedy injustices."
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Read more from Scott D. Cosenza.
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